Keith R. Kerns, Esq. Executive Director Ohio Optometric Association
Disclaimer This presentation is intended to offer information and general guidance on issues commonly encountered in medical settings but should not be construed as legal advice and should not be substituted for the advice of your own legal counsel. Optometrists should always seek the advice of their own attorneys regarding specific issues.
Step 1: Create a Job Description Outline duties and responsibilities Set qualifications Establish standards to assess performance Each employee in practice should have a job description, even associate optometrists Classify as full-time, part-time or temporary
Job Descriptions Identify the chain of command Requirements Licensure and certification Responsibilities Patient management and procedures Office management Patient records maintenance and confidentiality Office promotion Supervision of other employees Interaction with other employees Provision of vision services within guidelines of Ohio law and instructions of the doctor
Job Descriptions Key Point Each job description should include the following phrase: and other duties assigned by the supervising optometrist
Step 2: Advertise the Opening Americans with Disabilities Act Application process must be available to all persons and applicants on an equal basis Offer more than one method to apply: provide email address and phone number for inquiries Equal Opportunity Employer (EOE) Include statement in job posting
Step 3: Application and Interviews Issues to Avoid During Process: Race, Creed, Color, Religion, National Origin Equal Employment Act Gender, Marital Status, Family Equal Pay Act Age Age Discrimination in Employment Act Height and Weight Civil Rights Act Organization Membership National Labor Relations Act Genetic Information Genetic Information Nondiscrimination Act Disabilities Rehabilitation Act Americans with Disabilities Act
Application Don t ask for a picture with application Don t ask height/weight or eye, hair, skin color on application Don t ask if applicant is a citizen, ask if eligible for employment. Do ask: education, work history, references, criminal record
Interviews Let the applicant do the talking Avoid making promises Questions should be about applicant s ability to perform job duties, not personal issues Have we met before? What is your maiden name? NO Our office is open until 6, is there any reason you could not work that late? YES
Working Interviews Proceed with caution Have applicant sign agreement Check with your insurer
Step 4: Job Offer Before the job offer: References Confirm employment history Ask if eligible for re-hire Background Checks Obtain written release/waiver from applicant Consider bonding insurance for employees who handle finances Verify Credentials Ohio License Verification System https://license.ohio.gov/lookup/default.asp
Ohio Licensure Verification System Past disciplinary action taken by the board will be identifiable below the individual s name in a yellow box.
Job Offer Details: Define position Wages Benefits Office Location Work Hours (subject to change) Start Date Other Information About the Practice
New Hire Checklist Complete state and federal employment forms Complete employment application Identification number Resume information Emergency contact Create employee file Obtain copies of license/certification Set training schedule Set 90-day performance review Review office policies Provide employee manual
Employee Classification: Wages Non-exempt Exempt Covered by the Fair Labor Standards Act Generally considered hourly employees Clerical and technical Entitled to overtime compensation Entitled to minimum wage protections Majority of team Not Covered by the Fair Labor Standards Act Generally considered salaried employees Executives, administrators or professionals Spend 60% of time on duties requiring independent judgment Associate optometrist, office manager
Employee Classification: Benefits Full-time Typically 35-40 hours/week Do not refer to as permanent employees Part-time Less than 35-40 hours/week Temporary Hired for a specific purpose or job that will expire Office has flexibility to define
Benefits Health insurance Employer has flexibility to establish benefit Treat employees within classifications equally Vision benefits Treat employees and payers equally Disability and life insurance Retirement plans
Benefits Liability insurance Professional dues Licensure/certification fees Continuing education Travel expenses Tuition reimbursement Uniforms Vacation time
Key Point: Total Compensation List BENEFIT Dollar Amount Salary $$ Paid Vacation Days $ Paid Holidays $ Sick Leave $ Health Insurance $$ Vision Care Individual $ Vision Care Family $ Life Insurance $ Continuing Education $ Professional Dues $ Total Compensation $$$$$$
Attendance Policies Written office schedule Excessive absences or tardiness will be reflected in performance reviews and could result in discipline Unexcused/unannounced absence policy - voluntary resignation Lunch and break policies Flex-time policies - coordinating childcare
Leave Policies Treat employees within classifications equally Vacation Sick time Holidays Bereavement leave Jury duty Voting Inclement weather Military leave of absence
Family and Medical Leave Act Applies to employers of 50 or more Requires that employers provide up to 12 weeks of unpaid leave per year for: Family emergencies Serious illness of employee Serious illness of immediate family member Birth, adoption or foster placement of a child Does not apply to most offices
Maternity Leave Discrimination on the basis of pregnancy is considered sex discrimination under Ohio law Employers must provide a sufficient amount of maternity leave Establish a policy and stick to it
Office Policies Equal Employment Opportunity Statement It is the policy of this office to provide equal employment opportunity based on merit, competence and service, without regard to race, color, religion, age, sex, national origin, ancestry, citizenship, veteran status or disabilities Drug-free Workplace/Substance Abuse Employee Conduct Expectations on working with other staff members Interaction with patients and other offices Workplace violence Personal Appearance
Office Policies No smoking policy Confidentiality - HIPAA Financial policy - credit cards, expenses Gifts referrals Office security How to handle threats from public, patients and staff Emergency procedures Telephone and electronic communications Right to monitor and review
Harassment Policy Zero tolerance Duty to report No retaliation against those who report Complaint procedure Provide training Address issues with patients, suppliers, others
Associateship Relationships Why do associateships fail? Incompatible practice philosophies Inability of the practice to support another practitioner Unrealistic income expectations Unwillingness to listen to suggestions Lack of a written agreement
Contract is Important Protection for employer, associate and practice itself Prevent litigation Allows for discussion on all aspects of the business with the associate Lessens chance of future disagreement Impresses seriousness on all parties
Contract Basics Compensation and benefits for associate Patient assignment and scheduling Office policies and procedures Management and supervision issues Associate work schedule Plan for when it ends: Termination/Length of the agreement Restrictive covenants Key Point: Ownership of patient records and responsibility for care
Drafting Tips Always involve an attorney Work on contract terms together Try to resolve major issues before drafting Use clear, unambiguous language
You re Fired
Employee Discipline Performance Reviews Conduct periodically Document good and bad performance accurately Do not write discriminatory notes Obtain employee s signature on review Keep reviews and ALL disciplinary actions in employee s personnel file
Personnel Files Original employment application Job description Performance reviews Salary history Credentials: license/certification Current W-4 and other employment forms Vacation and sick leave requests Notes pertaining to injuries Jury duty notices Written accounts of disciplinary conversations
Employee Discipline Key Point: Deal with issues as they occur Ohio is an at-will employment state Employers may hire or fire employees for any reason, or no reason Employers may not act in a discriminatory manner Progressive - Set out disciplinary steps in writing Talk to employee about issue Provide written warning about issue and potential consequences if no improvement Discipline employee Probation, suspension, termination
Employee Discipline Protected Classes of Individuals Race Color Religion National origin Gender Age Family status Sexual orientation Disabilities Veteran status Genetic information
Age Discrimination 40 years or older Age Discrimination in Employment Act (ADEA) Discrimination claims could arise from termination, demotion or other adverse employment decision US Supreme Court Gross v. FBL Financial Services, Inc. (June 2009) Mixed-motive discrimination claims not authorized under ADEA (claims of partial permissible reasons and partial unlawful reasons for discipline) Employees must now prove age was THE cause of adverse employment decision
Workplace Law Suits in Ohio Ohio suits accounted for 3.3% of national filings In 2014, there were 2,893 suits filed 40% Retaliation 36% Racial Discrimination 32% Disability 28% Gender 5% National Origin Source: US Equal Employment Opportunity Commission
Fraud Prevention Background checks and bonding insurance Tips: Have cancelled checks mailed to your home inform staff Require vacations Checks: personally sign, require documentation, no blank, don t write to acronyms Periodic CPA review
Termination Checklist Consult with attorney Obtain resignation letter if possible Review security measures locks Cancel voicemail and email accounts Cancel banking authorizations Prepare for possible inspections OSHA/HIPAA Board of Optometry Medicaid/Medicare Key Point: Don t let unemployment rates influence your employment decisions
Employee Manual Key Point: Create/review your manual now Simple and straightforward Have attorney review Include EOE statement Include employment at will statement Include all policies and benefits Obtain acknowledgement from employees of receipt and understanding Inform employees of revisions Review annually Follow and enforce
Key Points 1. Each job description should include the following phrase: and other duties assigned by the supervising optometrist 2. Create a Total Compensation Sheet 3. Outline ownership of patient records and responsibility for care in associate agreements 4. Deal with employment issues as they arise 5. Don t let unemployment rates influence your employment decisions 6. Create or review your employee manual now
Keith Kerns kkerns@ooa.org (800) 874-9111